644 F.Supp.3d 203
W.D. Va.2022Background
- Plaintiff Kiersten Hening, a Virginia Tech women’s soccer player, declined to kneel during an ACC “Unity Statement” before the 2020 season opener against UVA; two teammates also stood.
- Coach Charles “Chugger” Adair publicly chastised Hening at halftime and later at a film session; she was removed from the starting lineup for the next two games and had dramatically reduced minutes, then resigned after the third game.
- Hening sued under 42 U.S.C. § 1983 alleging First Amendment retaliation for refusing to kneel; Adair moved for summary judgment arguing no adverse action, no causal (but‑for) link, and qualified immunity.
- The record includes still photographs suggesting Adair looked at Hening while she stood, evidence of team divisions over BLM, prior positive evaluations of Hening’s play, and close temporal proximity between the refusal and adverse coaching actions.
- The court denied summary judgment, finding genuine disputes of material fact on adverse action and causation and that qualified immunity did not clearly bar the suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adair’s conduct constituted "adverse action" for First Amendment retaliation | Hening: public berating, benching, and reduced minutes chilled speech and caused her to kneel later and quit | Adair: comments were routine coaching criticism based on poor play, not related to kneeling | Court: Genuine dispute exists; reasonable jury could find conduct would deter an ordinary person from exercising First Amendment rights |
| Whether there is a causal (but‑for) connection between protected activity and adverse action | Hening: close temporal proximity, photos, team rift over BLM, and her conservative views support inference of retaliatory motive | Adair: no evidence he knew she stood; would have benched her for performance regardless | Court: Credibility and circumstantial evidence create genuine factual disputes on but‑for causation precluding summary judgment |
| Whether absence of adverse action against other non‑kneeling players defeats claim (comparator) | Hening: circumstantial evidence of motive and timing is sufficient; comparator not dispositive at summary judgment | Adair: others who stood were not punished, undermining retaliation claim | Court: Comparator evidence is relevant but does not eliminate genuine disputes; case must go to factfinder |
| Whether Adair is entitled to qualified immunity | Hening: existing First Amendment principles give fair warning that retaliation for refusing to speak is unconstitutional | Adair: law not clearly established for these facts | Court: Right was clearly established in general; qualified immunity denied at summary judgment stage |
Key Cases Cited
- Wooley v. Maynard, 430 U.S. 705 (1977) (First Amendment protects right to refrain from speaking)
- West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (compelled speech violates the First Amendment)
- Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005) (right to be free from official retaliation for speech)
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (retaliatory motive must be but‑for cause of adverse action)
- Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (defendant may prevail by showing same decision would have been made absent protected conduct)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (student symbolic speech protected by the First Amendment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard on genuine dispute of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s burden on summary judgment)
- Ashcroft v. al‑Kidd, 563 U.S. 731 (2011) (qualified immunity requires clearly established law)
- Hope v. Pelzer, 536 U.S. 730 (2002) (qualified immunity and fair‑warning principle)
- Hartman v. Moore, 547 U.S. 250 (2006) (causation standard in retaliatory‑prosecution context referenced for but‑for causation)